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People and Reward
Asia
employment
law bulletin
2021
Welcome to the 2021 edition of our
Asia employment law bulletin!
Introduction
Last year, our bulletin focused on the era of The Freshfields Global People and Reward team has
disruption and its impact on businesses in the APAC penned other articles in our WorkLife 2.0 series
region, but none of us could have predicted the bringing together ideas and opinions from across the
nature of the disruption (or the scale and impact of firm on a range of topics that we consider to be at
the disruption) that 2020 would present to the world! the forefront of businesses’ minds as we begin to
emerge from the pandemic.
For employers, 2020 will be a year remembered as a
year of many “firsts” – it was the first time many
employers have had to make quick and sweeping Please do pick up the phone to your usual contacts or
changes to the way employees worked; it was the get in touch if you would like to discuss any of the issues
first time they have had to deal with such an covered in more detail.
imminent threat to the health and safety of their
workforce; and for many, it was the first time that the
importance of having a robust business continuity
plan has come into such sharp focus.
Against this backdrop, this 2021 edition of our annual
bulletin will be focused on the future of work as a
result of the COVID-19 pandemic. We have again
Kathleen Healy Stephanie Chiu Nicola Jones
collaborated with our StrongerTogether colleagues to
reflect upon our experiences in 2020 across 14 Partner Senior associate Associate
countries in the APAC region and how they may T +44 20 7832 7689 T +852 2846 3491 T +44 20 7427 3667
E kathleen.healy E stephanie.chiu E n icola.jones
shape the future of work.
@freshfields.com @freshfields.com @freshfields.com
The areas of focus for employers have evolved with
the life cycle of the pandemic. At the outset of the
pandemic, employers faced the need to ensure
business continuity while retaining their workforce,
for example, by turning to government support
schemes. They also had to consider what their
obligations to ensure the health and safety of their
employees meant in light of the remote working Carl Lim Fan Li
arrangements. Now with the roll out of vaccine
Associate Associate
programs in many countries, employers are
T +852 2846 3379 T +8621 6105 4128
considering issues around testing and vaccinations E carl.lim E fan.li
as well as new local government measures, for @freshfields.com @freshfields.com
example, regarding restrictions on the hiring of
foreign workers.
One prediction made across the board is that
remote working, which employers in the APAC
region were perhaps slower to embrace pre-
pandemic, will be here to stay.
In this 2021 bulletin, we will also discuss some of the River He An Hoang Ha
key legal issues and legislative developments that we Associate Senior Associate
have seen in 2020 in APAC, as well as key changes T +8621 6105 4134 T +84 2 4382 47422
that we expect to see this year. E river.he E ha.an
@freshfields.com @freshfields.com
Asia employment law bulletin 2021
Contents
01 09
Australia05 Malaysia26
Contributors: Aaron Goonrey, Luke Scandrett Contributor: Hon Cheong Yong
and Kate Clissold Zaid Ibrahim & Co
Landers & Rogers (a member of ZICO Law)
02 10
Cambodia08 Philippines28
Contributors: Marion Carles-Salmon, Contributors: Leslie C. Dy
Vansok Khem, Chris Robinson SyCip Salazar Hernandez
and Raksa Chan & Gatmaitan
DFDL
11
03 Singapore30
China 11 Contributor: Ian Lim and Nicholas Ngo
TSMP Law Corporation
04
12
Hong Kong 14
Taiwan32
Contributor: Kai-Hua Yu
05
LCS & Partners
India17
Contributor:
Palak Chadha, 13
Karam Daulet-Singh, Thailand34
Gaurav Desai and
Contributors: Stephen John Bennett and
Amiya Mehra
Wipanan Prasompluem
Touchstone Partners
Hunton Andrews Kurth
06
14
Indonesia19
Vietnam37
Contributors: Dimas Koencoro Noegroho,
Retno Muljosantoso,
Aveninta Maria and Cok Wulan
Soemadipradja & Taher
07
Japan22
Contributor:
Akiko Yamakawa and
Misa Osagane
Vanguard
08
South Korea24
Contributor:
Matthew Jones and
Beom-Kon Cho
Kim & Chang
Freshfields Bruckhaus Deringer LLP 3
Asia employment law bulletin 2021
01
Australia
Developments in the light of COVID-19 New legislation – Fair work
Similar to many other jurisdictions, the global amendment bill
pandemic acted as the catalyst in transforming the The various lessons learnt in 2020 led to the
Australian workplace environment. Many Australian introduction of the Fair Work Amendment
employers were forced to adapt their set workplaces, (Supporting Australia’s Jobs and Economic Recovery)
such as office environments, to working remotely. Bill 2020 into Federal Parliament. The industrial
relations omnibus bill introduces reform in multiple
Towards a hybrid workplace – what areas as a result of widespread consultation with
should employers know employers, industry groups and trade unions.
In 2021, employers who were previously reluctant to A significant reform proposed in the bill is the
implement flexible working arrangements will need criminalisation of wage theft. The bill will introduce
to carefully consider their ability to deny staff the jail terms and significant fines for employers who
option to work from home, now that it has been dishonestly engage in a deliberate and systematic
implemented as a viable option. pattern of underpaying one or more of their
employees. The offence will carry a maximum
With the transition to remote working, research
penalty of a four years’ jail sentence and/or AUS$1.11
from The Centre for Future Work revealed that
million (approximately US$0.88 million) in fines for
people working from home increased their weekly
individuals, and up to AUS$5.55 million
hours and were engaging in unpaid overtime. The
(approximately US$4.38 million) for a body
research found that employees worked an average of
corporate. The Fair Work Ombudsman, the
5.25 hours of unpaid labour each week during the
workplace relations regulator, will also receive
COVID-19 pandemic, with the worse affected group
increased funding to investigate underpayment and
being full-time employees (who averaged 6.21 hours
non-compliance by large businesses, and to set up a
of unpaid overtime a week) closely followed by
free advisory service for small businesses to advise
self-employed and part-time employees. This means
them about paying their staff correctly under the
that employers who have been paying their workers
applicable industrial instruments.
an ‘all-inclusive’ wage or salary intended to cover all
overtime and entitlements, may be at risk of In line with the culture of flexible working that was
underpaying their employees. It also raises concerns introduced during the pandemic, the bill also
about health and safety measures in the remote proposes to extend flexible working provisions
working environment. introduced during COVID-19 until March 2023,
which will enable employers to vary employees’
The duty of employers under Australian work health
duties and location of work for a further two years.
and safety legislation to ensure the health and safety
of employees at work, extends to the home
workplace. The research regarding unpaid overtime Vaccinations – no jab, no job?
shows that employers must ensure they have The new hybrid working environment i.e. both
measures in place to prevent employees suffering on-site and home workplaces, may also be impacted
health and safety risks caused by excessive work by the rollout of a COVID-19 vaccine in Australia,
hours, including risks to mental wellbeing such as and mandatory vaccination may form part of health
fatigue and stress, even while employees are and safety practices in future for employers.
working remotely. This has also demonstrated that Australian employers have a duty under the work
in many cases, workplace health and safety health and safety legislation to provide a safe
measures were previously inadequate to protect workplace for employees and, as far as reasonably
against the spread of infectious diseases in the practical, protect the health and safety of their
workplace. employees and other people who may be put at risk
from their business.
5
Asia employment law bulletin 2020
However, an employer’s direction to employees to be
vaccinated prior to returning to the traditional
workplace should not be made without ensuring
that such a direction to employees is lawful and
reasonable. Employers will need to consider the
applicable circumstances of their workplace and
their employees’ risk of exposure to determine
whether compulsory vaccination is reasonable,
noting that some employees may object to
vaccination. Otherwise, if an employer requires
mandatory vaccination in circumstances that may
not be reasonable, it may be at risk of discriminating
against workers who object to vaccination.
For example, if a workplace involves minimal
interaction with clients or the public and other
measures may adequately protect employees without
vaccination, it may not be considered reasonable to
require that all employees must be vaccinated.
However, as seen in the recent Maria Corazon Glover
v Ozcare [2021] FWC 231 decision, in some
circumstances, vaccination may be an “inherent
requirement of the role”, and an employee’s refusal
to be vaccinated may lead to termination of
employment.
6
Asia employment law bulletin 2020
02
Cambodia
This article has been prepared in collaboration with b. to establish an Occupational Health and Safety
Sarin & Associates, an association of Cambodian (OSH) Committee or COVID-19 Committee in the
admitted attorneys-at-law, working in a commercial workplace to regularly disseminate information,
relationship with DFDL. instruct employees on personal hygiene measures
and advise on preventative measures to avoid the
Developments in the light of COVID-19 spread of COVID-19.
Employers may formally adopt employee COVID-19
Working from home testing measures as part of their health and safety
Working from home is not specifically regulated in rules to protect the health and safety of all
Cambodia and is typically an arrangement mutually employees at the workplace. Such rules should also
agreed upon between the employer and its include applicable disciplinary actions for non-
employees. Cambodian Labour Law stipulates that compliance. The rules should be acknowledged and
the employer is entitled to exercise “direction and accepted by all employees in writing. However, any
supervision” over its employees as long as the disciplinary action taken against an employee for
direction and supervision is reasonable and in failure to comply with the internal work rules must
accordance with the law. Based on this provision, the be proportionate to the magnitude of the employee’s
employer may make necessary arrangements misconduct.
including, amongst others, working from home
arrangements. However, if the working from home New measures to mitigate the impact
arrangements affect any terms and conditions of the of COVID-19
employment contract, for instance, if it results in a
The Royal Government of Cambodia (RGC) issued in
reduction of an employee’s benefits, prior consent
2020 a number of measures aimed at mitigating the
from the employee is required.
impact of COVID-19, including:
In light of these health and safety concerns,
a. a government subsidy of up to USD 40 per month
Cambodian Labour Law requires employers to
during a contract suspension approved by the
provide a safe working environment to their
Ministry of Labour and Vocational Training
employees. If an employer is deemed to have
(MLVT) from January to March 2021 for employers
intentionally or negligently infringed its duty of
of several industries, such as: the garment, textile,
care, the employer may be held liable under tort
footwear, travel products and bags, and for the
provisions for damages, sustained by the employee.
tourism sector;
Testing of employees and other b. that enterprises may suspend monthly
measure that employers should take contribution payments to the National Social
to prevent the spread of COVID-19 Security Fund during the suspension of its
operations;
Employers must use all reasonable efforts to ensure
that they strictly comply with the guidelines issued c. the MLVT has continued to delay implementation
by all relevant authorities to prevent the spread of of the pension scheme for another six months,
COVID-19, which include: until July 2021; and
a. to immediately report to the competent d. the MLVT continues to defer Back Pay of seniority
authorities if any of their employees have payments (prior to 2019), and New Pay of seniority
COVID-19 symptoms or are suspected to be payments (from 2019 onward) applicable in 2020
COVID-19 positive; and and 2021 but payable in 2022 for any sectors inside
8
Asia employment law bulletin 2021
or outside of the garment manufacturing sector
(as listed above). However, the MLVT issued Notice
No. 003 dated 21 January 2021 which provided
that for factories and manufacturing sectors, Back
Pay of seniority payments (prior to 2019) and New
Pay of seniority payments applicable in 2020 and
2021 are implemented in 2021.
Finally, earlier in 2020, the MLVT organised a
tripartite consultation-seminar on amendments to
the Labour Law. This seminar discussed and
proposed certain amendments including:
a. amendments to provisions concerning shift work
in factories, enterprises and establishments where
more than one shift regularly occurs, including
revised rates of payment for night work;
b. expansion of the Arbitration Council’s
jurisdictional scope to cover individual disputes to
enhance the effectiveness of labour dispute
resolution mechanisms; and
c. cancellation of substitute days for public holidays
falling on a Sunday to enhance labour
productivity.
In light of these anticipated changes, employers are
advised to be vigilant. This is because, if the
proposed amendments are accepted, they will likely
require affected employers to modify the terms and
conditions of their employment contracts and
policies, including those in relation to night shift
work, paid public holidays, etc.
9
Asia employment law bulletin 2021
03
China
Developments in the light of COVID-19 size of the shared workforce, time and place of work,
work content, etc.) is required to be specified
Protection for both employees and between the employer with a labour surplus (the
employers during the pandemic Legal Employer) and the employer with a labour
shortage (the Host Entity).
Between January and March of 2020, the Chinese
government announced various employment-related Further, the employment relationship between a
policies in response to the COVID-19 pandemic. shared employee and the Legal Employer must not
These policies benefitted both employers and be terminated because of the temporary sharing of
employees. Employers were prohibited from workforce. The Legal Employer remains obliged to
dismissing employees who were confirmed pay salaries to its employees, making its social
COVID-19 patients, suspected patients or in insurance contributions and assume any work-
quarantine. Employers were also not permitted to related injury insurance liabilities even though a
carry out massive layoffs using the pandemic as a shared employee suffers a work-related injury whilst
ground. On the other hand, employers benefitted working for the Host Entity (though it may seek
from the Chinese government’s waiver of a part of reimbursement from the Host Entity). If the
the employers’ contribution to social insurance and employment between a shared employee and the
allowed employers to delay such contributions until Legal Employer terminates while the Host Entity
after the pandemic. continues to engage the employee for his/her work,
then a de facto employment relationship will be
These policies remain in force and continue to be established between the employee and the Host
applicable to both the employers and employees a Entity.
year after they were introduced.
Opinions to support flexible
Guidance on workforce sharing employment
The initial response to address labour surplus or
The Chinese government is committed to support
shortages in view of the COVID-19 outbreak was
the development of new forms of employment
through workforce sharing. This model was first
models which has been credited for containing the
introduced in a district in Shanghai to help
COVID-19 pandemic. In July 2020, the State Council
employees who were out of work due to their
issued the Opinions on Supporting Flexible
employers’ suspended or reduced operations. In such
Employment through Multiple Channels (the
instances, such employees could be temporarily
Opinions), pursuant to which a whole host of
engaged by another company that needed
measures are to be rolled out that aim to boost job
manpower. The pilot project in Shanghai proved to
creation and to raise income levels. Amongst other
be a success and was welcomed by both employers
things, the Opinions require provincial governments
and employees alike. Certain employers were as a
and the ministries and commissions under the State
result able to reduce their employment costs without
Council to:
undertaking any layoffs, while employers that faced
a shortage of manpower, particularly those in the a. expand certain industries where part-time
e-commerce sector, benefitted from the temporary workers are commonly used (e.g., cleaning, retail
engagement of additional workers to meet a surge in and construction);
business demand.
b. support the development of new employment
This solution was later advocated nationwide by the models (e.g., e-retailing, smart mobility, online
Chinese central government. In September 2020, the education and training, internet healthcare and
Ministry of Human Resources and Social Security online entertainment);
issued a circular, stipulating that all human
c. support the development of technologies which
resources departments were to support workforce
will facilitate remote working, home working and
sharing in order to achieve job stability and served
part-time working;
as a guide to the employers on such co-operation
agreements. Rights and obligations (including the d. strengthen public services for employment (e.g.,
11Asia employment law bulletin 2021
matching employers with labour surplus with
employers that require more manpower to
participate in workforce sharing); and
e. encourage online platforms to create more flexible
job opportunities, while imposing responsibilities
on these platforms to ensure that the rights and
interests of employees outside of the traditional
employer-employee relationships are protected.
Going forward, it is envisaged that the government
departments and local legislative institutions may
introduce related regulations to implement the
Opinions in the course of 2021, and we expect to see
new employment models emerge (in addition to
workforce sharing) that allow greater flexibility and
we expect this will be much welcomed by both
employer and employees.
12Asia employment law bulletin 2020
04
Hong Kong
employer has no control over. As an example, the
Developments in the light of COVID-19
OSHO requires an employer to carry out a health
After a year of political upheaval in 2019, Hong Kong and safety assessment of the working environment;
faced yet another challenging year with the otherwise it may be liable for a fine.
outbreak of the pandemic. Employers in Hong Kong
As with the OSHO, the ECO does not consider the
have had to grapple with a variety of challenges,
implications of employees working from home. The
including having to quickly implement remote
general position is that if a personal injury by
working arrangements to ensure the health and
accident “arises out of and in the course of
safety of their employees.
employment”, the employer will be liable to pay
Although the challenges were not unique to Hong compensation in accordance with the ECO, even if
Kong, certain issues were compounded here. Most the employee may have committed acts of
Hong Kong homes tend to be very compact, which negligence leading to the accident. Under case law,
means that working from home may not be a an accident “arises in the course of employment” if
feasible option for some employees, particularly it is in discharge of the employee’s duties or is
where they live with other family members. reasonably incidental to the employee’s employment.
Further, the health and safety legislations in Hong In other words, if the employee slips and falls when
Kong have not caught up with the modern ways of running to pick to a work call at home because the
working, which means that it’s not always easy for floor was wet, this could be deemed a work injury.
employers to understand and access their liabilities To put things into perspective, however, an employee
towards the health and safety of their employees travelling to the airport for a work trip who suffers
where they are working remotely. an injury on the way will also have a claim under
the ECO because it arises out of or in the course of
Mitigating the risks of remote working employment. These risks have always existed and
In Hong Kong, there are three sources of liabilities will continue to exist regardless of whether we move
when it comes to providing a safe working towards more flexible working.
environment for employees, namely: Until the law is updated to reflect the realities of
a. a common law duty of care; modern day working, allowing employees to work
flexibly or agilely will come with inherent risks
b. a statutory duty under the Occupational Safety
which Hong Kong employers will need to take into
and Health Ordinance (the OSHO); and
consideration.
c. under the Employees’ Compensation Ordinance
(the ECO). Practically speaking, there are things that employers
can do to mitigate (but not completely eliminate)
Under common law, employers have a duty to care to
those risks. This includes having a flexible working
employees and to provide a safe place of work and
policy in place so that it is clear that those who wish
this duty likely continues to apply even when
to take advantage of the policy need to be satisfied
employees are working from home. An employer
that their home is an appropriate venue for work.
could be liable for negligence or breach of an implied
Other steps which an employer can take to
duty in an employment contract to provide a safe
demonstrate that it has taken reasonably practicable
working environment if it fails to take reasonable
steps, include:
care to ensure that the employees are safe.
a. providing training to employees by occupational
The OSHO also requires employers to (amongst other
therapists (for example) on tips for setting up a
things) ensure as far as reasonably practicable the
home office;
health and safety all employees at work, but the
legislation has not caught up with the modern ways b. a pack of information which includes best
of working. As a result, it is not entirely clear how practices on maintaining health and safety at
an employer can satisfy the overarching home (covering things like having a good light
requirement to provide a safe working environment source, taking breaks regularly, etc.);
for employees when the workplace has evolved to c. regular check-ins with employees to ensure that
include an employee’s home or even a coffee shop any issues with working from home are fed back
down the street, all of which are venues which the to management.
14Asia employment law bulletin 2021
Vaccination of employees
Currently, the Hong Kong government’s vaccination
programs are expected to be rolled out from
February 2021 but limited information is available.
Employers that are looking to implement
vaccination policies in workplaces will likely have to
carefully strike a balance between their obligations
under the OSHO and common law to ensure the
health and safety of their employees at work and
potentially other competing legal issues that such
participation by employees may potentially bring.
Other developments
Freshfields 2020 whistleblowing
survey
We continued our survey that started in 2014 to
gather the views of respondents across 13 industries
in the UK, US, France, Germany and Hong Kong to
assess their attitudes towards whistleblowing and to
examine how this has changed over time. This
survey has taken place in 2014, 2017 and 2020.
The Hong Kong chapter of the survey reflects the
answers from 500 middle and senior managers
within large companies in Hong Kong. Amongst
other encouraging statistics revealed by the 2020
report, one observation is that managers in Hong
Kong are the most involved in whistleblowing - a
stark comparison to the US. Please see our blog
exploring why we think this is the case:
“Whistleblowing in the spotlight: why are
managers in Hong Kong more likely to blow
the whistle?” It is hoped that this trend will
continue into 2021 and the disruptions to the way
we work due to the COVID-19 pandemic will not
have a detrimental impact on the health of
whistleblowing in Hong Kong.
15Asia employment law bulletin 2021
05
India
post-pandemic era for the above-mentioned sectors
Developments in the light of COVID-19
with companies finding it a viable and more
cost-effective model. Recognising this, the Indian
The changing definition of “workplace” labour ministry has for the very first time
During the COVID-19 lockdowns, various advisories incorporated the ‘work from home’ concept as part
and directions were issued by both the central and of its draft model standing orders for the service
state level governments, directing employers to sector. Standing orders are essentially rules of
allow their employees to shift work bases to their conduct of an establishment (relating to inter alia,
homes. Indian labour laws did not really classification of workers, leaves, and termination)
contemplate or legislate the working conditions for and employers (engaging more than a certain
work-from-home (WFH) models and hence number of workers) are required to prepare and
businesses were seen scrambling to put in place adopt these in line with the model standing orders
appropriate WFH policies and business continuity issued by the government.
plans. The sectors in India which saw a tectonic shift
Other developments
over the last year are the information technology
(IT), information technology enabled services (ITES) Parliament approves the labour law
and the business process outsourcing (BPO) codes
industries in India which currently employs more After almost five years of discussions, four new
than 3 million Indians. labour codes relating to industrial relations, wages,
Picking up the cue quite early on, the Department of social security and safety were finally passed by the
Telecommunications (the DoT- the sectoral regulator Indian parliament (the code on wages was approved
for the BPO industry), first rolled out temporary in 2019 and the remaining three in September 2020).
relaxations to enable the shift to the WFH model. They are expected to be finalised and brought into
Witnessing the positive impact of these exemptions, force by April 2021 and once enacted, these codes
the DoT came out with a revised set of guidelines for are expected to make navigating the labyrinth of
service providers of voice-based BPO services in Indian regulatory frameworks simpler for employers
November 2020, expressly recognizing the concept and therefore, potentially also making it easier to do
of “work from anywhere” in India and incorporating business in India.
the relaxations provided earlier in the year into Key changes include the introduction of the concept
these guidelines - lending permanence to them. A of “fixed term” employment with a view to provide
study by the National Association of Software and employers the flexibility to directly employ workers
Service Companies (the industry association for the for a fixed duration on the one hand and ensuring
IT sector in India) suggests that over the next three that wages, benefits and conditions of work as are
to five years, up to 60 per cent of the IT industry’s available to permanent workers are made available
work and up to 40 per cent of the ITES work could to the fixed term employees on the other. In a first,
shift to a WFH model. It appears that the “world’s gig and platform workers have also now been
back office” (the moniker India had “earned” due to recognised under the Indian Social Security Code
its prolific BPO sector) is now migrating to Indian and have been defined to mean persons who are
homes! engaged in a work arrangement outside of a
Whilst the WFH model was put in place traditional employer-employee relationship.
involuntarily, it is expected to continue even in the
17Asia employment law bulletin 2021
06
Indonesia
Additionally, employers are advised to refrain from
Developments in the light of COVID-19
having employees regularly work shifts from
In an effort to mitigate the spread of the COVID-19 evening to early morning.
pandemic, starting in Indonesia from April 2020,
Exceptions to the above apply for certain sectors. For
Indonesia’s regional governments implemented,
instance, a recent regulation issued by the Minister
from time to time, “large scale social restrictions”
of Health sets out certain limited exceptions to work
(PSBB).
activities that are not subject to the social restriction
Working from home policy (or can be carried out in office premises),
which cover services related to defense and security,
The main purpose for implementing PSBB, amongst
public order, food commodities, oil and gas fuel,
others, is to limit the number of employees working
health, the economy, finance, communications,
in the office. The PSBB policy requires 50 up to 75
industry, export and import, distribution, logistics
per cent of a total number of employees in each
and other basic needs.
company to work from home. This introduces new
work habits such as remote-working and virtual In addition to the above, amendments to the
meetings through video conferencing and therefore Employment Law also allow employers in certain
significantly changes the dynamics of work sectors to implement more flexible working hours
environments. Indonesian regulations are silent on and regulate them internally.
the working from home arrangement. The criteria
to determine which employees should work from Employers’ new obligations
home or in the office are not specified in any The Circular Letter also obliges employers to carry
regulation, but rather in a Circular Letter of out certain preventive actions to limit the spread of
Ministry of Manpower of 2020, which gives the COVID-19 virus. For example, such as through
employers the discretion to determine the kind of temperature checking of employees and to provide
arrangement needed. In determining such criteria, employees with necessary protective equipment
employers are prohibited from discriminating such as masks.
against its employees based on, for example, gender,
Employers must also introduce measures to
ethnicity, religion or political orientation, as
maintain the general hygiene of work premises such
provided in the Employment Law and its
as through frequent cleaning with disinfectants,
amendment (Law No. 13 of 2003 on Employment as
ensuring air circulation and sunlight, providing
amended by Law No. 11 of 2020 on Job Creation).
access to handwashing facilities or hand sanitisers.
Under the Circular Letter, employers have several Employers are also required to circulate health
options in implementing work from home notices and information in the workplace (this may
arrangements, such as to: be published through banners, pamphlets, or other
media or through audio and video media
a. Classify the employees as:
broadcasted regularly to the employees) to raise
a. main employees that must work in the office for awareness amongst employees about the COVID-19
production operational activities; virus and to encourage good hygiene practices and
b. employees with administrative work who may the reporting of suspected COVID-19 cases in the
work from home; workplace.
c. vulnerable employees who have underlying The Ministry of Manpower has also issued a Circular
health conditions and who need to take public Letter which permits, amongst other measures to
transportation to and from their offices; protect jobs, adjustments on wages and the method
of payment subject to mutual consent between
b. Arrange for half of the employees to work from employers and employees.
home and to adopt a schedule of shift working;
and
c. Arrange for employees to work from home on a
full-time basis.
19Asia employment law bulletin 2021
Sanctions for breaching COVID-19
regulations
Except for the Law of 2018 on Health Quarantine
where it is provided that a person who does not
comply with the implementation of a health
quarantine and/or who obstructs with the
implementation of a health quarantine which causes
a public health emergency may be punished with
imprisonment of a maximum of a year and/or a
maximum fine of Rp100,000,000 (approximately
US$7,100), the other relevant COVID-19 regulations
do not detail the sanctions for breach.
20Asia employment law bulletin 2020
07
Japan
Developments in the light of COVID-19
Working from home
The adoption of remote working by employers in
Japan in view of the COVID-19 pandemic is low
compared to other jurisdictions. There are several
reasons that can explain this phenomenon. For
example, many employees in Japan commonly live
in small housing and do not have private spaces in
their homes for them to work in. Moreover, there is
a tendency for Japanese workers to rely heavily on
paper documents as opposed to electronic means to
perform their work, making remote working a far
less acceptable option for many.
That being said, there are a number of employers
who have defied traditional working practices to
welcome remote working or some other hybrid
working arrangements. In such instances, as there
are strict regulations around Japanese labour laws
that govern working hours, employers should ensure
that employees keep a proper record that track their
actual hours of work performed and that there is no
underreporting by employees of working hours for
each workday when they work from home.
Employers that have introduced work from home
arrangements should also constantly monitor the
adequacy of their working hours management
systems to avoid any unintended breach of the law.
Other Developments
Another question that may arise if an employer
places its employees on leave as a result of temporary
office closure due to a public health emergency (for
e.g. a Japanese government-issued lock down) or
business hardship, is whether the employer is under
any obligation to pay its employees salaries. The
answer to this is likely yes. Article 26 of the Labour
Standards Act (LSA) provides that an employer is
liable to pay an employee 60 per cent or more of his/
her salary as “involuntary leave allowance” if an
employee is placed under involuntary leave as a
result of a reason attributable to the employer. The
meaning of an employer’s “reason” under the LSA is
broad to say the least, and can conceivably apply to
any aspect of a business with few exceptions, such as
a force majeure event. It is therefore generally
difficult to be exempt from the payment of
involuntary leave allowance even in those situations
contemplated above.
22Asia employment law bulletin 2020
08
South Korea
In addition, Korea has seen a large rise in the use of
Developments in the light of COVID-19
“platform-based workers,” which refers to workers
The impact of the COVID-19 pandemic on the way in that use an on-line platform to provide their
which people traditionally work in Korea will be a services, including delivery, transportation and
lasting one. The biggest change seen has been the household services.
adaptation by employers to the “new normal” of
In connection with this rise in the number of
employees working from home and the surge in the
platform-based workers, on December 21, 2020, the
use of video teleconferencing to replace face-to-face
Ministry of Employment and Labour announced
meetings. In response to these trends, the Ministry
plans to provide various measures that aim to
of Employment and Labour has issued detailed
protect these platform-based workers to grant them
guidelines to give guidance to employers on how
with greater protection. A bill on the protection of
they should manage employees who work from
platform-based workers will be introduced in the
home.
first quarter of 2021.
With more employees working outside of the office,
more companies have been adopting the flexible
working hour systems available under Korean law,
including the “deemed working hour system” which
is applicable to employees whose working hours are
difficult to track.
However, for the companies that have not adopted
such flexible working hour systems while
implementing working from home, questions have
arisen about how best employers should track and to
check the exact working hours worked by
employees. Recently, the Ministry of Employment
and Labour found that working from home made it
difficult for employers to check their employees’
working hours and this has caused employees to
work more hours. In light of this development, the
Ministry is considering stepping up on its labour
inspection efforts.
24Asia employment law bulletin 2020
09
Malaysia
Developments in the light of COVID-19 New cases to be automatically referred
to the Industrial Court
Increased number of court cases is The previous requirement of a ministerial discretion
expected due to dismissals during the before a case could be referred to the Industrial
COVID-19 pandemic Court has been removed. Following this change in
2020 has been quite a year globally and Malaysia is the law, it is the Director General of Industrial
no different. In order to curb the spread of the Relations (DGIR) who must automatically refer to
COVID-19 pandemic, Malaysia went into a lockdown the Industrial Court any cases that are not settled in
for a number of months and it appeared to have reconciliation proceedings.
successfully curbed the transmission of the
Wider powers for the Industrial Court
COVID-19 virus. However, since December 2020 and
ushering the new year, there was a spike in the The expansion of the powers of the Industrial Court
number of cases, which resulted in another that now include the power to award compensation
lockdown with slightly less stringent measures. and back pay to the next-of-kin of deceased
claimants (when previously, a claim would abate in
Most employers responded to the lockdown by the event of the demise of the claimant) and the
placing their employees under some form of work granting of interest of up to 8 per cent per annum
from home arrangements. Others, who were heavily on monetary awards that remain unsatisfied after
impacted by the lockdown e.g. the tourism, non- 30 days.
essential manufacturing and retail sectors, tried
various ways to ensure business continuity, Enhancement of penalties
including encouraging employees to take annual Previously, non-compliance with Industrial Court
leave, reduced working hours, pay-cuts and awards or orders could result in a fine of up to
ultimately, when there no other options, dismissal of RM2,000 (approximately USD 495). The maximum
employees. We are beginning to see employers put fine payable has been increased to RM 50,000
in place contractual rights to terminate employment (approximately USD12,370). This fine may be
and/or impose cost cutting exercises upon the imposed in addition to the offender being compelled
occurrence of certain events. These have yet to be to pay any monetary award that may have been
tested in the courts, but employers are ordered. The general penalty for any contravention
understandably exploring ways that allows them of the IRA has similarly been revised from RM 2,000
flexibility to respond quickly according to their to RM 50,000 (approximately USD 1236).
needs.
These long awaited amendments are a welcome for
According to the Industrial Court (the body that employees. The implication however for employers is
hears cases of unjust dismissal), a rise in cases is that this may prompt a rise in the number of claims
expected throughout 2021 due to job losses during taken out by employees, especially, unjust dismissal
the pandemic. Employers should therefore prepare claims that would be referred to the Industrial
themselves by keeping abreast of the changes to the Court on an expedited basis and employers would
Industrial Relations Act. need to be better prepared to deal with such claims
Amendments to the Industrial that may be progressed by the Industrial Courts
Relations Act, in force as of 1 January much faster than before.
2021
The Industrial Relations Act 1967 (IRA), which
regulates disputes between employers and their
workforce and/or trade unions, was amended several
times by the Malaysian Parliament in 2020. These
amendments have been effective since 1 January
2021 and they include the following changes.
26Asia employment law bulletin 2020
10
Philippines
In the beginning of 2020, following the eruption of workers or forced leave.
the Taal Volcano, the Department of Labour and
b. Interim guidelines on workplace prevention and
Employment (DOLE) issued a Labour Advisory in
control of COVID-19, issued in April 2020 by the
January 2020, setting out rules for work suspension
DOLE and the Department of Trade and Industry,
and payment of wages (i.e. no work, no pay) during
that provides directions to the private institutions
natural or man-made calamities. It also provides
that are allowed to operate during the quarantine.
that employees cannot be administratively
sanctioned for their failure or refusal to work by c. The guidelines on employment preservation upon
reason of imminent danger resulting from natural the resumption of business operations, issued in
or man-made calamities. August 2020, which aims to assist employers to
resume their business operations while preserving
This first Labour Advisory set the tone for the rest of
the employment of their workers. This applies to
the year as two months later, a nationwide lockdown
all employers and employees, in the private sector,
was implemented due to the COVID-19 pandemic,
regardless of the employment status, as long as
resulting in more work suspensions in non-essential
they are allowed to resume business operations
industries.
under the quarantine arrangements.
Developments in the light of COVID-19 d. The department Order, issued by the DOLE in
October, which sanctioned the fact that businesses
A series of new legislation may suspend their businesses for more than six
As a response to the COVID-19 pandemic, the months due to the pandemic. Prior to this order,
Philippine Congress enacted two Republic Acts, one an employment relationship could be suspended
known as Bayanihan to Heal As One Act, and the other in given circumstances for a maximum of six
as Bayanihan to Recover as One Act. Signed into law in months only.
March 2020 and September 2020 respectively, these
laws provide for, amongst other things, government Labour administration switches to the
funding for the implementation of the DOLE’s use of online proceedings
cash-for-work programs. The Bayanihan to Recover as The DOLE shifted from manual to online filings and
One Act also provided for tax exemption of online hearings by establishing the Online Systems,
retirement benefits received by officials and a web-based programme developed to monitor
employees who opted to retire between 5 June 2020 compliance of employers on labour laws and other
and 31 December 2020 subject to certain conditions. relevant issuances. The preferred mode of hearing
for both the DOLE and the National Labour Relations
Further, the DOLE issued rules and regulations
Commissions is now videoconferencing.
implementing these laws, including the guidelines
on the implementation of the COVID-19 Adjustment Other developments
Measures Program (CAMP), which is a safety net Expected legal developments on the
program that provides a one-time financial support gig economy
to affected workers due to the COVID-19 pandemic.
With work from home becoming more prevalent,
Other issuances of the DOLE in 2020 aimed at the rise of the gig economy is expected this year.
mitigating the effects of the pandemic on businesses A Senate Bill, known as the National Digital Careers
and employees that include the following: Act, which aims “to create, design and develop
a. Guidelines on the implementation of flexible work programs to ensure access to training, market and other
forms of support or innovation strategies for digital
arrangements (FWA) as a remedial measure due to
careers,” is now pending before the Philippines
the ongoing outbreak of COVID-19. Initially issued
Senate. A version of this bill is expected to be
pre-lockdown, it aims to assist employers and approved in the coming months to prepare Filipinos
employees in the implementation of temporary and the government for the skills needed for the gig
FWAs or alternative work schemes other than the economy under the “new normal.” The expected
traditional or standard workhours/days/week. The challenge would be the determination of the status
DOLE highly encourages the adoption of any of the of freelance workers and the rights and benefits that
flexible working arrangement schemes, such as will come with it.
reduction of workhours or workdays, rotation of
28Asia employment law bulletin 2021
11
Singapore
find themselves facing administrative penalties, and
Developments in the light of COVID-19
even criminal prosecutions. Further, foreign PMEs
Often cited as being the ‘new normal’, it is becoming the salary requirements to qualify for an
apparent that employers in Singapore (as with their Employment Pass have now been raised to a fixed
counterparts worldwide) will not be completely monthly salary of at least S$4,500 (c. USD 3,399) (or
discontinuing telecommuting and work-from-home higher, if an employee works in the financial
arrangements, even as COVID-19 vaccines become services sector, or are older and more experienced).
publicly available. As of the time of writing, the
Ministry of Manpower (MOM) in Singapore has Dismissal and trade union actions
continued to require at least partial remote working, Trade unions have also stepped up their efforts
and are likely to continue doing so at least for the during this period to protect unionised employees
foreseeable future. from unfair dismissals. In July 2020, three unions
took steps to take industrial action against an
Vaccination programs
employer who went ahead with a planned dismissal
As Singapore begins rolling out its vaccination exercise before talks were concluded with the
program, a key question on employers’ minds is unions. This sounds unremarkable until one
whether they can compel employees to take the considers that the last union-sanctioned strike in
vaccine. The answer is likely to be no. The Singapore Singapore was in 1986.
government encourages everyone to get vaccinated
against COVID-19 (and has promised free vaccines to Expected trend in 2021
all Singaporeans and long term residents), but it will There has been a discernible trend towards the
be voluntary. Whether that will remain the case protection of employees. This trend began some
should vaccination acceptance rates prove low is still years ago but was greatly accelerated in 2019 when
up in the air, but so far, take-up rates have been Singapore’s Employment Act was amended to extend
relatively high. Corporate employers will, in most its coverage to all PMEs, and the Employment Claims
circumstances, find it challenging to make it Tribunals were empowered to hear wrongful
mandatory for employees to be vaccinated. dismissal claims.
Requirements for employing This trend is expected to continue into 2021 and
foreigners beyond. The authorities have made it clear that
while Singapore will very much remain a global hub
An issue that has been brought to the forefront by
open for business, its foreign worker policies are not
the pandemic is that of the employment of foreign
going to be relaxed any time soon and employee
talents amidst the economic contraction and
protections are here to stay regardless of the
uncertainty that we are facing. Alongside those in
COVID-19 pandemic.
parliament stressing the need to protect the jobs of
Singaporeans, the processes and eligibility criteria
for work passes (required for foreign employees to
work in Singapore) have also been tightened
significantly.
Employers looking to employ foreign professionals,
managers and executives (PMEs) and mid-skilled
workers now have to advertise job openings on the
national jobs portal for 28 days – double the
previously required duration, to ensure that fair
consideration is given to Singaporeans. Only then
will employers be able to apply for Employment
Passes (for PMEs) or S-Passes (for mid-skilled
workers). Employers who pre-select a foreigner and
go through a mere box ticking exercise may still
30Asia employment law bulletin 2021
12
Taiwan
leave is intended to supplement and not replace
Developments in the light of COVID-19
family care leave provided to parents under the Act
of Gender Equality in Employment. An employer is
Employer’s right to extend working not obliged to pay for disease prevention care leave.
hours or suspend leave due to the
COVID-19 pandemic If an employee qualifies for either of the above-
mentioned types of leave, the employer shall not
The Ministry of Labour issued an official
treat the employee as absent without a reason, force
interpretation that COVID-19 can qualify as an
the employee to take personal leave or other leave,
“unexpected event” under the Labour Standards Act.
deduct attendance bonuses, dismiss the employee or
The latter allows the employer to extend working
impose other unfavourable penalties.
hours or suspend the leave of employees upon the
occurrence of unexpected events. However,
employers should bear in mind that if they use this
exception, they must offer the employees
appropriate time off or grant additional
compensatory leave, as well as to make notifications
to the appropriate trade union (if any) or the local
competent authority.
Employers affected by the COVID-19
pandemic may obtain employees’
consent to reduce their working hours
The Ministry of Labour has issued an official
interpretation that an employer that is affected by
the COVID-19 pandemic and suffers business
contractions can follow the relevant regulations to
negotiate with employees and to obtain their
individual consent to reduce their working hours
and wages. However, any reduced wages must still
comply with the statutory minimum wage. In
addition, the employer may adjust the labour
insurance contribution for the employee after such
reduction, but pension contributions must still be
made based on the original monthly wage.
Employees’ right to take “disease
prevention isolation leave” and
“disease prevention care leave”
“Disease prevention isolation leave” refers to a leave
of absence granted to individuals who have been
assigned to isolation or quarantine by health
officials, or family caregivers of isolated or
quarantined individuals who are unable to care for
themselves. According to the Ministry of Labour, an
employer is not obligated to pay for such leave,
unless it was responsible for the employee’s isolation
or quarantine.
“Disease prevention care leave” refers to a leave of
absence granted to parents of children under 12
years of age that are affected by school closures.
According to the Ministry of Labour, this type of
32Asia employment law bulletin 2021
13
Thailand
Developments in the light of COVID-19 Severance payments following the
It is undeniable that the pandemic and the dismissals due to economic hardships
government’s response to it have had a significant of the employer
impact on Thailand’s population and the economy. Currently, Thai labour law does not specify the
The business sector has had to adapt and adjust their COVID-19 pandemic as a reason for termination
business strategy, including the management of its without statutory severance payment. Therefore,
workforce, to survive the crisis. During this time, even if an employer terminates its employees in
the Ministry of Labour has also answered many order to cope with the economic effects of COVID-19,
labour law-related questions from employers. or if an infected employee is no longer able to fulfil
his/her duties to the company, the provisions of the
Managing force majeure Labour Protection Act relating to severance
The term ‘force majeure’ is broadly defined in the payments and other relevant compensations must
Thai Civil and Commercial Code (CCC) as an still be complied with and remain unaffected by any
unforeseeable event beyond one’s control. Whether consideration of the economic effects of COVID-19.
COVID-19 constitutes a force majeure event for each
business has to be determined on a case-by-case The rates of severance payment under
basis. However, based on the CCC, if a business is the Labour Protection Act depend on
ordered by the government and/or local the employees’ duration of service
administrative agencies to close temporarily in order In April 2020, the Ministry of Labour published two
to curb the spread of COVID-19, an employer that is regulations as short-term measures to help affected
required to suspend its business operations does not workers.
have to pay wages to its employees during this
The first one, known as the Force Majeure
period. On the other hand, there is no event of force
Unemployment Benefits Regulation, provided that
majeure if an employer is not ordered to close by the
insured employees who ceased working temporarily
government or where an employee can work from
between 1 March and 31 August 2020 are entitled to
home based on the employer’s policy.
receive compensatory benefits, during the period of
While certain businesses may rely on COVID-19 as a temporary business closure but for not more than 90
force majeure event to suspend their operations and days.
dismiss certain employees (including downsizing to
An employee who has received (or will receive) 75
meet reduced demand), they have to decide on such
per cent of his or her wages from the employer, due
matters carefully given the other costs to be paid
to suspension of the employer’s business, is not
(including statutory severance) under the Labour
entitled to collect such amount from the Social
Protection Act.
Security Office (i.e. no double claim/ payment).
However, if a business has to shorten its operating
The other regulation, known as the Economic Crisis
hours or temporarily suspend business operations
Unemployment Benefits Regulation, provides that
for reasons other than due to force majeure, in such
insured employees are entitled to receive
case, the employer is required to pay its employees at
compensatory benefits from the Social Security
least 75 per cent of their wages that they would have
Office during periods of unemployment caused by
received for normal working days, for the entire
the economic crisis between 1 March 2020 and 28
period that the employer does not require them to
February 2022 as follows:
work. A written notice of the reduction in operating
hours or suspension of business must be given to a. in case of termination by the employer, the
employees and the local Labour Office at least three employee is entitled to receive compensation at
working days in advance. The local Labour Office the rate of 70 per cent of their daily wages, limited
will consider and approve the temporary suspension to 200 days for each termination; and
of business on a case-by-case basis based on the
b. in case of resignation or expiration of fixed-term
justifications provided by the employer such as
employment, the employee is entitled to receive
having insufficient funds to fully operate the
compensation at the rate of 45 per cent of their
business.
daily wages, limited to 90 days for each period of
unemployment.
34Asia employment law bulletin 2021
A third regulation, known as the Ministerial
Regulation on Receiving Unemployment Benefits
Due to Force Majeure Caused by the Pandemic of
Dangerous Communicable Diseases under the Law
on Communicable Disease, announced in December
2020 entitles insured employees who are unable to
work due to the fact that they are required to be
quarantined, self-quarantine or their employer’s
business is ordered by the government to close
temporarily to contain the spread of COVID-19, to
receive unemployment benefits equal to 50 per cent
of their daily wages (as opposed to 62 per cent of
daily wages given to those affected by the first wave
of COVID-19) during the period of temporary
business closure but for not more than 90 days.
As highlighted above, the Thai government has
implemented short-term labour policies to help
affected employees. For the future, more long-term
labour policies will be required to assist Thailand’s
recovery from the COVID-19 pandemic, for example,
through job creation policies, skill development
policies, and wage subsidies for businesses to support
employment.
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